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CALIFORNIA SUPREME COURT CONCLUDES FEDERAL “DE MINIMIS” RULE INAPPLICABLE TO CALIFORNIA WAGE AND HOUR LAWS

by Michelle R. Ferber and Julie Ann Giammona In a unanimous opinion, the California Supreme Court refused to apply the federal “de minimis” doctrine in a lawsuit brought by a former Starbucks employee alleging that he was not paid for approximately 13 hours over a 17-month period, totaling $102.67 (before penalties).  The “de minimis” doctrine

DYNAMEX APPLIED RETROACTIVELY AND EXPANDED TO PAGA CLAIMS

by Michelle R. Ferber and Julie Ann Giammona A California superior court judge in Orange County has concluded that the Dynamex case, which specifies a more stringent “ABC” test for determining independent contractor status, should be applied: (1) retroactively; and (2) to actions brought under the Private Attorney General Act (PAGA). 1. RETROACTIVE APPLICATION Judge

CALIFORNIA LABOR COMMISSIONER HITS EMPLOYERS FOR MULTI-MILLION DOLLAR “WAGE THEFT” CITATIONS

by Julie Ann Giammona and Michelle R. Ferber In the past three months, the Labor Commissioner has been busy investigating and issuing multi-million-dollar citations against employers for what it refers to as “wage theft.” Such violations include failure to pay overtime, minimum wage, split shift premium and failure to provide the required meal periods. In

AN EPIC WIN FOR EMPLOYERS: UNITED STATES SUPREME COURT ENDORSES CLASS ACTION WAIVERS

by Julie Ann Giammona and Michelle R. Ferber Employers across the nation received a green light from the United States Supreme Court in Epic Systems Corp. v. Lewis (May 2018) to include class action waivers in arbitration agreements. The Court specifically concluded that arbitration agreements which provide for individualized arbitration preventing class actions do not

VICTORY FOR STAFFING COMPANIES: NO MEAL PERIOD LIABILITY AS CO-EMPLOYER

by Julie Ann Giammona A California court of appeal has recently concluded that a staffing company is not liable for its work-site co-employer’s violation of meal period violations where the staffing agency complied with the requirements of the Labor Code. In Serrano v. Aerotek, Inc., a former employee brought a class action lawsuit against both

REDEFINING INDEPENDENT CONTRACTOR STATUS: CALIFORNIA SUPREME COURT ANNOUNCES REVOLUTIONARY CLASSIFICATION TEST ABOLISHING LONG-STANDING PRECEDENT

by Julie Ann Giammona Yesterday, in a highly anticipated decision, the California Supreme Court overturned almost 30 years of case law defining who qualifies as an independent contractor.  Adopting a standard that will dramatically reduce the number of workers that can be classified as independent contractors, the Court announced that every worker will be presumed

SEXUAL HARASSMENT BY NON-EMPLOYEE TRESPASSER FALLS OUTSIDE SCOPE OF WORKERS COMPENSATION EXCLUSIVITY

by Julie Ann Giammona Labor Code Section 3600 provides generally that workers compensation benefits are the exclusive remedy for an employee alleging an injury in the workplace. However, the exclusivity doctrine has long been held to be inapplicable to actions brought under the California Fair Employment and Housing Act (FEHA) which protects employees against discrimination,

NINTH CIRCUIT TELLS EMPLOYERS NOT TO USE SALARY HISTORY AS A FACTOR IN DETERMINING PAY

by Julie Ann Giammona In Rizo v. Fresno County Office of Education the Ninth Circuit Court of Appeals ruled en banc that an employer’s use of prior salary information to justify pay gaps between men and women violates the Equal Pay Act. This decision overturned a prior Ninth Circuit 1982 decision (Kouba v. Allstate Insurance

CALIFORNIA SUPREME COURT ANNOUNCES RETROACTIVE OVERTIME CALCULATION FAVORING EMPLOYEES

by Julie Ann Giammona In Alvarado v. Dart Container Corp. of California, the California Supreme Court determined that an employer should use the number of regular, straight-time hours the employee worked during the pay period (excluding all overtime hours) when calculating an employee’s overtime pay rate where a flat sum bonus has been earned. Moreover,

FEHA Protection for Obese Employees Just Became Easier

by Julie Ann Giammona In 1993, the California Supreme Court concluded that obesity does not qualify as a disability under FEHA unless it has a physiological cause (Cassista v. Community Foods). A California court of appeal recently eased the evidentiary requirements necessary to establish the possibility of a physiological cause in Cornell v. Berkeley Tennis